 Home Decisions Statutory Review Public Sector Employment & Management Act 2002
Statutory Review Public Sector Employment & Management Act 2002
Executive, 25 August 2008, EX94/08
"That the report re the statutory review of the Public Sector Employment and Management Act 2002 be noted;
That the PSA pursue the amendment of Section 22 when the Government releases the exposure draft of any proposed amending legislation;
That further consideration is given to any proposed changes once the exposure bill is available."
Background
The Public Sector Employment and Management Act has been recently reviewed consistent with Section 170 requirement to review the legislation every 5 years.
The review was conducted by the Department of Premier and Cabinet in two stages. An initial issues paper was circulated to stakeholders for comment and submissions.
The PSA made a submission in response to the issues paper.
Stage 2 involved the development of a final report which analysed the various submissions to produce final recommendations.
The final report made no mention of Section 22 which currently acts as a bar to industrial proceedings in relation to appointments. The PSA has run a number of cases that have been struck down for wont of jurisdiction because of the operation of this section.
The final report was tabled in both houses of Parliament on the 26th of June.
The report is now before cabinet for its consideration.
Current position
The Public Sector Workforce Office has agreed to engage in further consultation in relation to specific proposals for amendments to the legislation once Cabinet has approved a defined course of action.
Key recommendations from the final report
On the whole the main recommendations are uncontroversial and should be broadly supported by the Association. Further consideration should be given to our position once an exposure draft of amending legislation is available. The key recommendations requiring closer consideration are tabulated.
| Recommendation |
Detail |
PSA Analysis |
| Rec 9 - |
Amend section 19(3) to allow not only permanent officers to apply for positions within a Department but also departmental temporary employees employed for more than two years. |
This has been the practice pursued by the PSA in a number of restructures which effectively treats long term temporary staff the same as permanent officers for the purpose of the internal advertising round. |
| Rec 11 - |
Clarify section 23 so a probationary period can be extended. |
Current provision only provides for confirmation or annulment of probation period once the term has expired. Allowing for an extension may provide employees with more time to demonstrate suitability for a position and avoids the agency terminating the appointment because it has reservations about the individual's capacity. |
| Rec 17 - |
Amend section 54 to provide the Director General of the Department of Premier and Cabinet with the ability to waive the permanent residency or Australian citizenship requirement. |
May be necessary in light of emerging labour shortages. Removes one of the grounds to argue for maintaining staff in a temporary capacity. |
| Rec 24 - |
Amend section 86(6A) which allows public sector employees who are on long-term secondments (i.e. for at least two years) to be appointed to new positions in the agencies to which they are seconded) so it is clear that it also applies to secondments within public sector agencies as well as secondments between public sector agencies. |
May create problems with the operation of merit appointments. It allows positions initially advertised as temporary appointments to morph into permanent positions. This may possibly reduce promotional opportunities as applicants who would be interested in a permanent position may not consider applying for a position advertised as temporary. Arrangement currently applies for cross agency transfers. |
| Rec 27 - |
Delete section 101 Use of Teaching Service staff by Department. |
May affect the capacity for NSWTF to cover administrative positions in the Department of Education. |
The following recommendations are not final recommendations but proposals that are under consideration and subject to further consultation.
| Recommendation |
Detail |
PSA Analysis |
| Rec 1 - |
Analyse and consult further on a set of draft objectives for inclusion in the Act. |
Could be beneficial as objectives may assist with interpretation of the Act in industrial or other legal proceedings. |
| Rec 5 - |
Analyse and consult further on the proposal to remove the concept of positions. |
Should be opposed. This will create significant uncertainty for employees and necessitate reconsideration of a number of well established processes that operate on the basis of the concept of positions with occupants (eg managing displaced employees). |
| Rec 6 - |
Analyse and consult further on the proposal to reduce the categories of employment to fixed and open employment terms. (Alternative to Rec 5) |
May have numerous unintended consequences and should not be supported unless the proposal is clearly elaborated. |
| Rec 15 - |
Amend section 47 to provide an officer with one opportunity to respond where the officer's performance is found to be unsatisfactory and disciplinary action is proposed. |
Further erodes the procedural fairness process in the current disciplinary process. |
| Rec 35 - |
Amend the definition of "immediately follows" in Clause 4 of Schedule 3A to allow for a break of up to 12 months subject to further assessment of the financial implications. The break itself is not to count for recognition of prior service. |
This is a positive move and should be strongly supported. May assist in attracting back to the service members who have left for career development reasons. |
| Rec 36 - |
Analyse and consult further on amending Schedule 3A to allow for the transfer of leave entitlements between Australian public sector jurisdictions. |
This is a positive move and should be strongly supported. |
A copy of the full report was tabled.
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